Code v. Esper

United States District Court, District of Columbia

December 19, 2017

CHRISTOPHER J. CODE, Plaintiffv.MARK T. ESPER[1], Defendant.

MEMORANDUM OPINION

COLLEEN KOLLAR-KOTELLY UNITED STATES DISTRICT JUDGE.

Plaintiff
Christopher J. Code, a former Lieutenant in the Navy and a
current member of the Navy Individual Ready Reserves, seeks
judicial review in this case of a final decision of the Army
Board for Correction of Military Records
(“ABCMR”). In the challenged decision, the ABCMR
denied Plaintiff's petition to correct his military
records and to vacate a debt of $44, 200 he owes to the
United States Department of Defense (“DOD”). The
gravamen of Plaintiff's petition to the ABCMR was that
the United States Army Criminal Investigation Command
(“CID”) had incorrectly
“titled”[2] him in a Report of Investigation
(“ROI”) that concluded that Plaintiff committed
certain crimes. Specifically, the ROI concluded that
Plaintiff fraudulently represented the nature of his orders
on an official school application in order to make his
children appear eligible for tuition-free education at a DOD
school located in Puerto Rico. Plaintiff denies he did
anything wrong.

Presently
before the Court are Defendant's [19] Motion for Summary
Judgment and Plaintiff's [20] Cross-Motion for Summary
Judgment. Upon consideration of the pleadings, [3] the relevant
legal authorities, and the record as a whole, the Court will
GRANT-IN-PART and DENY-IN-PART both motions. Keeping in mind
the narrow scope of its review under the Administrative
Procedure Act (“APA”), the Court concludes that
there was nothing arbitrary, capricious or contrary to law
about the ABCMR's conclusion that there was sufficient
evidence to support the CID's decision to title Plaintiff
with the charges of Obtaining Services under False Pretenses
and Making a False Official Statement. The Court also finds
nothing arbitrary, capricious, or otherwise improper about
the ABCMR's determination that the CID did not violate
the Privacy Act by sharing its ROI with the Defense Finance
and Accounting Service (“DFAS”). Nor will the
Court disturb the ABCMR's finding that the CID did not
commit error by valuing Plaintiff's debt using the
tuition rates for the school at which Plaintiff's
children were enrolled. The Court does, however, find that
the ABCMR's refusal to take corrective action regarding a
Commander's Report of Disciplinary or Administrative
Action (“CRDA”)-which all parties agree was
completed by an individual who lacked authority to do so-was
arbitrary and capricious and not in accordance with law. The
Court will order that the CRDA be expunged.

I.
BACKGROUND

A.
Factual Background and Initial Administrative
Proceedings

Plaintiff
was issued Permanent Change of Station (“PCS”)
Orders on January 4, 2005, requiring him to report to Fort
Buchanan in San Juan, Puerto Rico for a three year period
beginning in August 2005 and lasting until July 2008.
AR000264-67. Plaintiff's three children accompanied him
to Puerto Rico and were enrolled in a DOD Education Activity
(“DODEA”) school at Fort Buchanan (“the
Fort Buchanan School”) for the 2005-2006 and 2006-2007
school years. AR000298. The Fort Buchanan School is
tuition-free for certain individuals stationed in Puerto
Rico.

In
early 2007, Plaintiff was advised by a Navy detailer that
“at some point before [his] current orders expired in
July 2008, [he] would receive new permanent change station
orders for someplace other than San Juan.” Id.
Desiring to keep his family in Puerto Rico, Plaintiff
submitted a formal request for an extension of his orders,
asking to remain in Puerto Rico through August 2008.
AR000298; AR000269. Plaintiff's chain of command
supported his request for an extension. AR000270-72.
Plaintiff states that he “believe[d] that the request
would be granted.” AR000298.

It was
not. In a letter dated April 26, 2007, Plaintiff's
request was denied by Navy Personnel Command. AR000273.
Nonetheless, four days later, on April 30, 2007, Plaintiff
submitted an application to re-enroll his children in the
tuition-free Fort Buchanan School in Puerto Rico for the
2007-2008 school year. AR000299. In the application, despite
having been told that his orders would soon be changed and
that he would be required to leave Puerto Rico in 2007,
Plaintiff stated that his “current orders will expire
on July 2008.” AR000274. Plaintiff signed and certified
that “the information provided on this form is true and
correct.” Id. He claims that “[a]t the
time [he] submitted the paperwork, [he] did not yet know that
[his] request for extension had been denied and still
believed that [his] extension request would be
granted.” AR000299. According to Plaintiff, his wife
told the Registrar for the Fort Buchanan School that
“there was a chance [Plaintiff] would receive new PCS
orders prior to July 2008, ” but the Registrar
“verbally advised” that Plaintiff's
“children's eligibility to attend the Ft. Buchanan
school for the 2007-2008 term was tied to [Plaintiff's]
current orders.” Id.

Plaintiff
claims that he received the April 26, 2017 letter from Navy
Personnel Command denying his request for an extension of his
duty in Puerto Rico on or about May 8, 2017. The record
contains a faxed copy of this letter with a heading that
suggests that it was, in fact, transmitted on May 8.
AR000306.

On May
23, 2007, Plaintiff received his official new PCS orders
requiring him to leave Puerto Rico and report to Kingsville,
Texas-the orders Plaintiff had already been informed of
months before. AR000299; AR000280-83. The orders required
that Plaintiff report to Texas by no later than June 2007.
Id. Plaintiff claims that he immediately called the
Fort Buchanan School Registrar and verbally told her about
his new orders. AR000299. He states that he was never
instructed to remove his children from the school or told
that his children were no longer eligible. Id.
Plaintiff reported to his new posting in Kingsville, Texas in
June 2007. AR000248; AR000252.

On
January 24, 2008, the CID discovered that Plaintiff's
children were still enrolled in the Fort Buchanan School
despite the fact that Plaintiff had moved to Texas. AR000246.
They commenced an investigation.

Investigators
interviewed the Registrar for the Fort Buchanan School.
AR000247. The Registrar “was presented the scenario
involving” Plaintiff. Id. She “advised
that [Plaintiff's] children could not attend the DOD
school on Ft. Buchanan since the sponsor, [Plaintiff] was no
longer assigned or stationed in Puerto Rico.”
Id. The Registrar also provided the investigators
with a copy of Plaintiff's April 30, 2007 application for
his children's enrollment at the Fort Buchanan School.
Id.

Investigators
also spoke with an unnamed source who informed them that
Plaintiff's assignment in Puerto Rico was only a
twenty-four month tour, ending in the summer of 2007.
AR000248. This does not appear to have been an accurate
description of Plaintiff's orders. As explained above,
Plaintiff's tour in Puerto Rico was initially scheduled
to last for three years, concluding in the summer of 2008.
AR000264-67. The remainder of this witness' statement,
however, appears to roughly align with the other evidence in
the record. The witness stated that Plaintiff knew in early
2007 that he would be ordered to leave Puerto Rico by no
later than August 2007. AR000248. The witness also recounted
that “[s]ometime in Apr[il] 07, [Plaintiff] requested a
one year extension in Puerto Rico, which was immediately
denied and he was advised that he would be” required to
change postings in June 2007. Id.

Next,
an investigator met with the Assistant General Counsel for
the DODEA. AR000256. During that conversation, the
investigator stated that Plaintiff had falsely claimed on his
children's school enrollment application that his orders
would not expire until July 2008, and the Assistant General
Counsel gave his opinion that Plaintiff was “not
eligible to enroll his three children at the Fort Buchanan,
Puerto Rico school.” Id.

On July
29 and 30, 2009, an investigator corresponded with the
individual who issued the letter to Plaintiff denying his
request to extend his orders in Puerto Rico. AR000284. That
individual stated that she thought she had e-mailed or faxed
a copy of the letter to Plaintiff “at the time the
letter was signed out.” Id. Regardless, she
stated that “[i]f you are trying to prove that he
intentionally defrauded the local school by saying he thought
his extension was approved, I can affirm with absolute
confidence that I personally told him otherwise within no
more than a few days after the date on the letter.”
Id.

The CID
issued its final ROI regarding Plaintiff's children's
enrollment at the Fort Buchanan School on January 12, 2011.
It concluded that its investigation had:

established probable cause to believe [Plaintiff] committed
the offense of False Official Statement and Larceny when he
falsified documentation by registering his three children in
the [Fort Buchanan School] for a year while he was not
assigned to the geographic area. [Plaintiff] knowingly
falsified these [ ] documents 4 days after his Permanent
Change of Station (PCS), extension request was denied,
transferring him from Puerto Rico to Kingsville, TX. The loss
to the U.S. Government was $44, 200.00.

AR000242; see also AR000005-06.

Despite
the conclusions of the CID, the United States Attorney's
Office in San Juan declined to prosecute Plaintiff and
referred any action to the DOD and Plaintiff's chain of
command. AR000242. No disciplinary actions were taken against
Plaintiff by his chain of command. AR000006.

Prior
to the issuance of the final ROI, an individual referred to
as the “Agent in Charge” of the CID Florida Fraud
Resident Agency completed a CRDA regarding the allegations
against Plaintiff. AR000316-21. The form indicates that
administrative action had been taken against Plaintiff for
the offenses of Larceny and False Official Statement, and
that Plaintiff was required to pay restitution of $44,
200.00. AR000317-19. The individual who filled out this form
was not in Plaintiff's chain of command.

Also
prior to the issuance of the final ROI, on or around
September 30, 2010, Plaintiff received a letter from the
DFAS-a DOD component with official duties related to
collecting debts owed to the Department-stating that he owed
a debt to the DOD of $44, 200. AR000308- 09; AR000005.
Plaintiff claims that this letter was the first notice he had
received of his alleged debt or the charges against him. The
record indicates that the CID had presented
“documentation and a structured timeline of
events” to the DFAS, and that the DFAS had accepted
financial responsibility for the $44, 200 loss and initiated
procedures to collect it from Plaintiff. AR000242; AR000006.
When Plaintiff protested the debt to the DFAS, he was
informed that the debt would remain valid unless the CID
overturned the determinations in its ROI. AR000009.

Accordingly,
Plaintiff submitted a formal request to the CID asking it to
amend the ROI. AR000232-38. Plaintiff requested that the ROI
be amended to indicate that the charges against him were
unfounded, that his name be deleted from the title block of
the ROI, and that Plaintiff accordingly be removed from the
“Defense Central Index of Investigations.”
AR000232. Plaintiff argued that “there was no credible
evidence that [he] committed any crime.” AR000233. He
also requested that an “operational review” be
undertaken in connection with the referral of the ROI to the
DFAS. AR000232-33. On April 9, 2013, the CID issued a letter
denying Plaintiff's requests. AR000224-25.

Plaintiff
then submitted a petition for correction of his military
records to the ABCMR. AR000212-23. Plaintiff requested the
following relief from the ABCMR: that the CID's ROI be
expunged or alternatively amended to show the offenses as
“unfounded, ” that the CRDA filed with respect to
...

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